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3/1/02
German Dog Laws Update:
Constitutional Court rejects suspension of BSL laws

THE GERMAN Constitutional Court last week rejected an application from dog breeders including the German Kennel Club VDH to suspend key parts of the country's dangerous dogs legislation until such time as the German Supreme Court made its final ruling on whether the laws passed at national and regional level were, in fact, lawful.

The application against the Dangerous Dogs Law dated 12th.April 2001 and sub-section 11 of the Animal Protection - Dogs Act dated 2. May 2001 was put by Professor Dr. Jan Ziekow, and was heard by Judges Jaeger, Homig and Bryde.

The ninety plaintiffs comprised the VDH, dog breeders and the 'ordinary' owner of one Pit Bull Terrier and focussed, mainly, on what effect the existing laws were having on dog breeders and the dogs they were breeding.

The application argued that the law for restriction of transport and import of dangerous dogs into the country was causing difficulties in allowing for sufficient breeding animals. Also, Paragraph 2 of the Dangerous Dogs Law modified the Animal Protection Law and bans the "breeding of vertebrate animals or attempts to modify them through biotechnical or genetic means, if it is to be expected, that the offspring will suffer genetically caused behavioural problems or genetically caused enhanced aggression". According to sub-section 11 Sentence 3 of the Animal Protection - Dogs Act was passed on this basis to assume that Pitbull Terriers, Staffordshire Bull Terriers, American Staffordshire Terriers and Bull Terriers and also crosses with these breeds can be assumed to show such heightened aggression

By applying for suspension of the law, the claimants stated that their complaint is neither unadmissable nor obviously without reason.

The judges rejected these arguments, focussing on the fact that the claimants stated they would incur serious financial loses at, without a suspension of the law, they would not be able to carry on breeding programmes with the existing dogs in Germany due to the import ban.

The judges stated: " It has to be taken into account though that in spite of the claim by the claimants, that their very existence is being threatened, with exception of claimants 9, 10 and 37 none of the claimants give their occupation as dog breeders and that the turnover shown in the paperwork submitted minus cost and taxes doesn't seem to be sufficient for a living."

Responsible

"The Law against Dangerous Dogs was, according to the reasons given by the government proposal, planned to compliment the Acts passed by the county governments, who are first and foremost responsible for the protection of people against dangerous dogs and against irresponsible acts of certain dog owners.... The law therefore is used to protect the constitutionally guaranteed legal rights to life and health. The reason for the law was, according to it's justification, the increased number of attacks by dangerous dogs against people. Amongst them was especially an incident in Hamburg where a pit bull and a Staffordshire Terrier [sic] cruelly killed a child in the school playground."

Any suspension of the law preventing the import of 'proscribed' dogs to Germany would, according to the judges, "...lead to a tangible diminishing of the protection from dangerous dogs, going by the basis of the legislative concept."

The final comment by the judges was quite telling: "The court opted for the existing Federal Government line that the laws were necessary to protect human life.

"If the negative results of a suspension are compared to the drawbacks caused by such a suspension, the damage done through a suspension outweighs the other option. Measures which will protect human life, which has the highest of values within the constitution and which will protect people from bodily harm, will have to be abandoned for the time being. Based on the estimate by the legislative authority is has to be assumed that suspending the Act will lead to a higher probability of attacks by dangerous dogs on people. Damage done to health and life would in many cases be irreversible and of great severity. The drawbacks of not suspending the Act for the time being are comparatively less severe. This applies mainly when it comes to material damage of the business interests of the applicants and comparable dog breeders."

Long-time German anti-BSL campaigner Gabi Woiwode told OUR DOGS that the decision of the Constitutional Court was practically unavoidable because of the way in which the application for suspension of the laws had been framed and, crucially, by whom it had been framed.

" I really don't like to say this, but this court practically HAD to decide this," said Woiwode. "The question of this trial was NOT, whether BSL or the paragraphs of the Federal Law are making sense or not. The plaintiffs (VDH et al.) claimed for a quick decision for this law. Principally, this means that a court is asked to withdraw the law (or parts of it) until a final decision is to come later.

"This has already been the case in the land of Hessen, where the dog edict has been stopped in certain parts in September 2000 until the final decision that we had this autumn. For example the sterilisation compulsion had been stopped, because it is a step that cannot be reversed, if the court should consider this item to be void in its final decision.

"So, in this case, our highest court had to weigh the (mainly financial) interests of breeders - not dog owners! - against the safety aspects of 80 million inhabitants. The plaintiffs had been chosen among breeders who have contacts abroad.

"Sorry, but it is only too logical that financial interests of people that do not even make a living from breeding, but are breeding in addition to another job for their living, are being regarded as a lower interest compared to the health and safety of 80 million citizens.

"One always has to look carefully on the exact wordings of any trial to understand its backgrounds.

Not clear

And you can easily destroy any good chances by a wrong wording or wrongly chosen plaintiffs...I already feared that the VDH would mainly claim the breeders interests and that we would end up with a decision like this. With such a focus I never expected any chances."

Woiwode adds that the court decision actually does not demonstrate anything. It is not even yet very clear whether the suit has been accepted yet or not. A final decision might be decided by another chamber of the same court .

"In my personal view it was not very clever to go that way ... a lot of money has been wasted and for the public the governments with their campaign of fear was given another chance to be flamed up again. All it was good for was to make people think, that only breeders are complaining against the dog laws, that only their rights are being restricted or taken away and that "fighting dogs" ARE dangerous."

Sadly, as could be expected, the German media made much of the court's decision. One Hanover newspaper carried a large photograph of a Staffie with a muzzle on and the blaring headlines 'Fighting Dogs...the danger is too big'.

Fellow German Campaigner Cathie Detmar it all up: " My guess is that they are hoping in two years most of the dogs have been taken out of the country or destroyed. And yes, there was obvious political muscle behind this decision...that much is obvious."